California Attorney General Calls on CMS to Withdraw Proposed Revisions to Nursing Home Requirements of Participation

September 26, 2019

In his September 16, 2019 comments on the Administration’s proposed revisions to the nursing facility Requirements of Participation, California State Attorney General Xavier Becerra writes that the proposed rule violates the 1987 federal Nursing Home Reform Law, the Social Security Act, the Affordable Care Act, and the Administrative Procedures Act. Beccera describes the proposed changes as “reckless”[1] and urges the Administration to withdraw the proposed rule in its entirety.[2]

The Attorney General sees the rule as consistent with the Administration’s “pattern of rolling back protections, subverting statutory requirements, subjecting residents of long-term care facilities to potential harm, and putting states on the hook to ensure no gaps emerge in safety and the public health.”

Specific proposals reducing protections in resident grievances, psychopharmacologic drugs, and infection control violate the Secretary’s “duty and responsibility” under the Reform Law to ensure that the standards of care, and their enforcement, “‘are adequate to protect residents’ health, safety, welfare, and rights and to promote the effective and efficient use of public moneys.’ 42 U.S.C. §1395i-3(f)(1); §1396r(f)(1).” CMS describes its deregulatory proposals as making CMS a “‘better business partner.’ 84 Fed. Reg. at 34737.”

The proposed rule is arbitrary and capricious and violates the Administrative Procedures Act, 5 U.S. C. §706(2)(A), (D), by removing protections for residents in infection control, nutrition services, and physical environment without adequate justification and by not adequately taking into account the harms proposed changes will cause residents. Proposed revisions to compliance and ethics programs as well as the quality assurance and performance improvement (QAPI) program evade statutory requirements mandated by the ACA.

Finally, the proposed rule “will harm public health and impose costs and obligations on states and state programs.” The Attorney General criticizes the proposal to create a “constructive waiver” process that allows facilities to receive a 35% reduction in the amount of a Civil Money Penalty (CMP) imposed against them even if they do not waive their right to formally contest the CMP in an administrative hearing. He writes, “Presumptively reducing the amounts of warranted penalties furthers the dangerous policy of CMS and HHS to reduce fines at the behest of industry, resulting in a nearly $13,000 drop in the average fine under the current administration as compared to 2016.”[3]

Describing the reliance of Medicaid Fraud Control Units on CMS “to provide facility oversight and beneficiary protections through a strong regulatory structure,” he discusses the importance of CMPs in the regulatory scheme:

CMPs are an essential tool for regulators to ensure facility compliance and guarantee better performance in the future. Consequently, weakening or delaying their application hampers our ability to both punish bad actors and ensure improvement, and thereby puts beneficiaries’ health and lives at risk. The changes in the Proposed Rule decrease the dollar amount and frequency of penalties that – though rare and low in amount – nonetheless help safeguard Medicare and Medicaid beneficiaries. The threat of penalties is a deterrent to facilities engaging in abusive behavior. Eroding even these penalties enables unscrupulous operators to provide substandard care and receive minimal penalties, if these lapses are even brought to light. The absence of a reliable regulatory backstop could pose challenges to prosecutions of a variety of infractions, including wrongful evictions; inadequate staff training; and the absence of protection against abuse, neglect, and exploitation.

The Center for Medicare Advocacy and the Long Term Care Community Coalition also submitted comments on the proposed rule, joined by 19 other organizations. The Center and LTCCC agree with Attorney General Beccera that the proposed rule, if finalized, will endanger the health, safety, and well-being of residents across the country.